These
two related cases involve an abandoned business venture that
sought to sell tumblers to Walmart and other large retailers
under the name Three Two Eight, LLC (“Three Two
Eight”). On one side of the deal were Daniel Sachs and
his companies DSC Products, Inc. (“DSC Products”)
and DSC Products Holding, LLC (collectively,
“Defendants”). On the other side were the LeDuc
family, including Bruce, [1] his daughter Jennea, and his wife
Marcellas (collectively “the LeDucs”), and their
companies, LeDuc Gifts & Specialty Products, LLC
(“Signature”) and 4Brava, LLC
(“4Brava”) (collectively,
“Plaintiffs”).

Before
the Court are six motions and objections to an order of the
Magistrate Judge. Plaintiffs seek affirmative summary
judgment against Defendants in both cases.

Plaintiffs
and the LeDucs also seek dismissal of DSC Products'
counterclaims, crossclaims, and third-party complaint claims.

For the
reasons that follow, the Court will grant in part and deny in
part 4Brava's motion for affirmative summary judgment and
deny Signature's motion for affirmative summary judgment.
The Court will order the windup and termination of Three Two
Eight. The Court will grant the motion to dismiss settled
claims and Signature's, 4Brava's, and the LeDucs'
motions for summary judgment on Defendants'
counterclaims, crossclaims, and third-party complaint claims.

On
April 23, 2014, Signature sent Sachs a price list for some of
its tumblers. (Sachs Dep. at 93:11-23; B. LeDuc Decl. ¶
7; Shannon Decl., Ex. 4.) In May 2014, Signature sent Sachs
product samples, which Sachs used in sales presentations to
Walmart. (B. LeDuc Decl. ¶¶ 8; Sachs Dep. at
71:16-72:10.) Bruce and Sachs met in person with a Walmart
buyer, Jason Rogers, in August 2014. (B. LeDuc Decl.
¶¶ 14-21; Sachs Dep. at 147:17-148:10.) At that
meeting, Sachs and Bruce pitched Rogers American Tumbler
products and showed him Signature's catalog. (Sachs Dep.
at 148:12-149:3, 169:6-8; Shannon Decl., Ex. 5 (“Rogers
Dep.”) at 24:19-27:16.)

Around
September 2014, Walmart committed to “ordering 24 items
for 200 stores, ” which is referred to as “Flow
1.” (B. LeDuc Decl. ¶ 24; see also Rogers
Dep. at 29:1-24, 120:2-17.) Four of Signature's injection
molds could fill the order, but needed some modifications to
use the Tritan material that Walmart required. (B. LeDuc
Decl. ¶¶ 25-27; see also Rogers Dep. at
116:15-117:13; Shannon Decl., Ex. 50 (December 2014 email
chain, including Sachs asking about the cost and time it
would take “to convert the current super traveler into
Tritan”).)

Bruce
allegedly told Sachs that Sachs would “be responsible
for paying half of the costs to modify Signature USA's
molds” - estimated at “between $30, 000 and $40,
000” - because Signature did not want to “bear
the risks on the [Walmart] orders alone.” (B. LeDuc
¶ 28.) In September 2014, Sachs emailed a manufacturer
for estimates regarding his “friend Bruce LeDuc”
who was “looking for a lid for his coffee mug.”
(Shannon Decl., Ex. 7.)

In
September 2014, Sachs emailed Bruce and informed him that he
submitted samples for a second, larger order with Walmart,
referred to as “Flow 2.” (Shannon Decl., Ex. 9;
B. LeDuc Decl. ¶¶ 36, 38-39.) Bruce explained that
Sachs said this additional order would not require delivery
until later in the next year; however, Walmart agreed to a
faster timeframe than anticipated, which required the parties
to fill Flow 2 early in 2015 rather than later that year. (B.
LeDuc Decl. ¶¶ 38-39.)

B.
Purchasing Molds

Bruce
decided Signature would need to “have some new
equipment built, ” including copying some of its
existing molds, in order to meet the needs of the new order.
(Id. ¶¶ 40-41.) Bruce allegedly told Sachs
that Signature was not interested in funding the new molds
for the second order, but because Sachs had already
committed, Signature agreed to “commission the design
and build of the additional needed molds and equipment,
” if Sachs provided “copies of the purchase
orders from [Walmart] and funds . . . in advance.”
(Id. ¶ 43.) Bruce stated, “Sachs agreed
to assist with financing the design and build of the new
molds and equipment needed to fill the [Walmart] orders, but
only if he would have a guarantee of receiving his money back
upon completion of the Flow 2.” (Id. ¶
47; see also J. LeDuc ¶ 27 (stating that Sachs
agreed to contribute to the molds, but that “he wanted
at least some of his money back if Three Two Eight failed and
the partnership was dissolved in less than three
years”).)

Sachs
disputes the LeDucs' characterization of the purchase of
the molds. Sachs testified that he initially intended to
purchase the product from Signature; but, once it became
apparent that Signature could not fulfill the Walmart orders
with its existing molds, he testified that “Bruce and
[Sachs] decided on a verbal agreement that [they] were going
to . . . purchase tooling together, and [they] were going to
start a business together that sold product to the mass
retailers. And [they] agreed that [they] were going to split
the tools, ” as well as the costs, profits, and losses.
(Sachs Dep. at 72:13-74:4.) But, Sachs could not identify a
particular date or a specific conversation in which they
reached this agreement. (Id. at 74:5-10.) Sachs only
stated that the verbal agreement occurred before the
confirmation of Walmart's Flow 1 order, at some point
between April 2014 and September 2014. (Id. at
109:17-110:24, 171:22-172:1.)

Sachs
also testified that either he purchased the molds to own
himself or their partnership purchased the molds making him a
co-owner. (See, e.g., Id. at 125:7-15; Sachs Decl.
¶ 7-11.) However, Sachs thought that he would receive
reimbursement for his financing of the molds if the
partnership ended, and admitted that the parties never
discussed Sachs keepings the molds if the partnership fell
through, (see Sachs Dep. at 125:2-25), which does
not necessarily conflict with the LeDucs'
characterization of the arrangement - aside from whether
Sachs was considered to have “purchased” or
“invested” in the tools. Sachs also stated that
Sachs and Bruce “agreed that [they] would invest in new
tooling.” (Id. at 55:23-56:4.) Sachs admitted
no written contract exists stating Sachs would own the tools.
(Id. at 123:25-124:14.) But Sachs testified to his
belief that “purchasing, ” providing money for
the molds, equated to “ownership.” (Id.
at 74:12-78:15, 124:18-19.) Sachs specifically stated that
“[i]f I purchase something with my money, then yes, I
own - I have ownership in that.” (Id. at
78:14-15.)

The
record evidence shows that Signature entered into agreements
with Aroplax Corporation (“Aroplax”) to create
the additional molds. (See Shannon Decl., Ex. 10; B.
LeDuc Decl. ¶ 32.) Signature corresponded directly with
Aroplax in creating the molds. (Shannon Decl., Ex. 11; B.
LeDuc Decl. ¶ 56.) Sachs was not directly involved in
discussions with Aroplax about the molds. (Shannon Decl., Ex.
11 (showing the LeDucs and Aroplax did not copy Sachs on
emails about the mold designs); Sachs Dep. at 89:12-90:2
(Sachs acknowledging he did not have “a whole
lot” of involvement in the design of the molds).) Sachs
recognized that “Signature, in Aroplax's eyes, was
the owner of the tools, on paper” because
“Signature gave Aroplax the purchase orders for the
tools.” (Sachs Dep. at 208:8-14.)

C.
Three Two Eight LLC

Sachs
“broached the idea of a partnership between” DSC
Products and Signature after they met with Rogers, but Bruce
stated he “was not interested in exposing Signature USA
to the risks required to sell to mass-market discount
retailers like [Walmart], ” and he did not want to
“creat[e] a compet[i]tor of Signature USA.” (B.
LeDuc Decl. ¶ 22.)

After
confirming Flow 2, Sachs “rais[ed] the partnership idea
again[, ] suggesting that [Sachs and the LeDucs] split
profits and losses on the [Walmart] transactions.”
(Id. ¶ 44.) According to Bruce, he responded
that the LeDucs would only consider a partnership if it
involved a “separate company which would be established
to share both the costs and the profits equally.”
(Id. ¶ 45.)

In
October 2014, Sachs flew to Minnesota to meet with Bruce and
Jennea about forming a partnership. (Sachs Dep. at 202:15-19;
B. LeDuc Decl. ¶ 48.) On November 13, 2014, Sachs stated
that he formed DSC Products Holding to represent his part of
the new partnership. (B. LeDuc Decl. ¶ 57; Shannon
Decl., Ex. 12; J. LeDuc Decl. ¶ 11.) Sachs created this
new company, rather than using DSC Products because he
“wanted to have it separate from [his] everyday
business that [he] still had at the time.” (Sachs Dep.
at 185:22-186:3.) On November 26, 2014, Jennea and Marcellas
LeDuc formed 4Brava to represent “the LeDuc branch of
the partnership.” (B. LeDuc Decl. ¶ 59; J. LeDuc
Decl. ¶ 11.)

According
to Bruce and Jennea, Sachs gave Jennea permission to name and
register their partnership as a Minnesota LLC, and Jennea did
so, filing articles of incorporation and paying certain fees
to register Three Two Eight on November 26, 2014. (B. LeDuc
Decl. ¶¶ 57, 60; J. LeDuc Decl. ¶ 12.) The
parties agreed to split costs and profits equally between
4Brava and DSC Products Holding. (Sachs Dep. at 33:21-34:25;
B. LeDuc Decl. ¶ 50; J. LeDuc Decl. ¶ 6.) Bruce and
Jennea stated that the parties agreed that the LeDucs would
have majority control in decision-making, (B. LeDuc Decl.
¶ 51; J. LeDuc Decl. ¶ 6), but Sachs testified that
they “didn't get into much” with regard to
decision-making, (Sachs Dep. at 203:21-204:4).

At the
same time, Bruce sent orders for the modified and new molds
to Aroplax in December 2014 on Signature's account
because Aroplax “would not agree to fill orders for
Three Two Eight or for Sachs or his companies because they
had not worked with them in the past.” (B. LeDuc Decl.
¶¶ 75-76; see also J. LeDuc. Decl. ¶
23.) Bruce told Sachs that Signature would allow this
arrangement “only if the [Walmart] purchase orders were
transferred to Three Two Eight's name” and payments
from Walmart were “scheduled to be paid in a Three Two
Eight bank account which both parties could access.”
(B. LeDuc Decl. ¶ 77.) Jennea stated that Signature
agreed to act as guarantor for Three Two Eight's services
with Aroplax “in exchange for Three Two Eight's
agreement to purchase samples from Signature USA, to rent
Signature USA's molding and equipment for production of
Three Two Eight's tumblers, and to pay for[]the expenses
incurred.” (J. LeDuc Decl. ¶ 24.) According to
Bruce, Sachs agreed to change the account name with Walmart.
(B. LeDuc Decl. ¶ 77.)

On
January 6, 2015, Sachs sent Bruce an email stating that he
had received the purchase order for Flow 2 with Walmart.
(Id. ¶ 79.) On the same date, Sachs told the
LeDucs to place orders in Signature's name for Three Two
Eight for both Flow 1 and Flow 2 with Aroplax, and noted
“[a]s soon as our new company is set up we can submit a
change order to Aroplax from our new company.” (Shannon
Decl., Ex. 14; B. LeDuc Decl. ¶ 80.)

Bruce
stated that on January 15, 2015, Jennea emailed Sachs a draft
operating agreement for Three Two Eight and “a draft
trademark assignment agreement, ” and stated
“that [she] would be forwarding an agreement regarding
use of molds.” (B. LeDuc Decl. ¶ 82.) The parties
held a conference call around February 10, 2015, in which the
parties agreed once again to split profits and losses
equally, and that Jennea, Bruce, and Sachs would each have an
equal vote in decision-making. (Id. ¶¶ 85,
87-88.) According to Bruce, the parties also discussed a
lease agreement for Three Two Eight's use of
Signature's molds, under which Sachs would be reimbursed
for three years, and after that time, Three Two Eight could
continue to use the molds until operation ceased.
(Id. ¶ 89.) Under that plan, “Signature
USA would maintain ownership of the molds, insurance on the
molds, and maintain the molds.” (Id.)
According to Bruce, Sachs agreed to the plan “as long
as he was able to receive a return of funds toward the molds
if Three Two Eight, LLC was no longer operating in less than
three years.” (Id.)

On
February 12, 2015, Signature sent Sachs a draft lease
agreement reflecting these terms, which Sachs forwarded to
his attorney. (Id. ¶¶ 91-92; Shannon
Decl., Ex. 15.) Sachs testified the parties did not use the
word “lease” until Signature sent this email and
that this email constituted the first time Signature asserted
ownership over the molds. (Sachs Dep. at 51:14-53:6.) Sachs
also forwarded the proposed agreement to his wife, Celestina
Sachs (“Celestina”), who was neither an owner in
Three Two Eight nor privy to any discussions regarding the
partnership. (Shannon Decl., Ex. 16 (“C. Sachs
Dep.”) at 7:14-24, 10:8-10, 12:4-6, 13:5-8.) Celestina
read through the contract, and “two things really stuck
out to” her; she was surprised by the decision-making
provision, giving the LeDucs the majority in decision-making,
and by the tool lease agreement because it was her
“understanding that the tools were co-owned.”
(Id. at 13:9-14:13.) Celestina asked Sachs about
ownership of the tools and Sachs told her, “Bruce told
me not to worry. He only did that for tax reasons.”
(Id. at 15:3-8.) Celestina told Sachs not to sign
the agreement. (Id. at 17:7-8.) Then, around
February 13, 2015, Sachs and Celestina held a conference call
with Bruce and Jennea, and Sachs “echo[ed]”
Celestina's concerns regarding the lease. (Id.
at 16:22-17:19; B. LeDuc Decl. ¶¶ 93-94.) In
response, Bruce and Jennea made clear that they viewed the
tools as Signature's property, and that ownership of the
tools was not negotiable. (See C. Sachs Dep. at
17:20-18:4; B. LeDuc Decl. ¶¶ 94-95, 97.)

After
this conversation, Sachs continued making payments on the
molds, including one the same day. (B. LeDuc Decl. ¶ 98;
Sachs Dep. at 216:10-13; see also Shannon Decl., Ex.
18.) Sachs testified that he “started looking at the
books, and . . . realized that . . . [he] had put in 400,
000-plus dollars, ” and that in moving forward without
assurances that he would get the molds he “was taking a
gamble.” (Sachs Dep. at 193:11-194:6, 216:10-21.)
However, the only documented payment in the record by that
time was Sachs' initial contribution of $40, 602.50 to
the molds. (Shannon Decl., Ex. 17.)

Soon
after the telephone conference, on February 23, 2015,
Signature threatened to stop production until Sachs assured
Signature that the Walmart orders and proceeds were in Three
Two Eight's name and went directly into a Three Two Eight
account. (B. LeDuc Decl. ¶¶ 100-01; J. LeDuc Decl.
¶ 32; see also Shannon Decl., Exs. 19-21.) For
example, on February 23, 2015, the LeDucs' attorney
emailed Sachs' attorney, and copied the parties,
regarding the remaining disputes, stating:

All of this is for nothing, however, if we cannot at a
minimum have the Walmart POs assigned to Three Two Eight
today, and have the Walmart funds placed in a Three Two Eight
bank account. If we do not have such an assignment agreement
and evidence that Walmart has been directed to remit funds to
Three Two Eight rather than to your client, my client will be
forced to stop all manufacturing and production on the
Walmart orders today . . . .

(Shannon Decl., Ex. 20.) Bruce also emailed Jennea and Sachs
later that day, asking for confirmation on the creation of a
joint account and “that Walmart [would] be wiring their
payments to the joint account for the two POs.”
(Id., Ex 21.) Sachs responded a few hours later:

Bruce, I do not know how long it will take for the paperwork
to be submitted and all proper information [to] be setup at
Walmart. I called the accounting department there today and I
was not able to get a hold of anyone. I left messages and I
will continue again tomorrow. What I do know is that I
promise that I will get this set up so that we all have
security knowing that the money from [W]almart PO's will
be funded into our new partnership.

(Id.) Sachs sent a second email later that night
suggesting that they use a different bank for the joint
account, and asserting:

Regarding Walmart, just so you know there are not two
purchase orders for Walmart, there will be close to 100
P.O.'s on these two orders. Like I mentioned earlier, I
don't know at this point how to switch the remit to
address. I need to speak to someone who can walk me through
the process. But I am working on it! I don't know how
long it will take but I will keep you updated the second I
know.

(Shannon Decl., Ex. 22.)

Also on
February 23, Sachs and Jennea corresponded by text message
where Sachs said he “left a message for the accounting
department and [he would] again continue to try until [he
got] a hold of someone” to change the remittance for
the Walmart payment, but that it was “a big corporate
frustrating circle every time [he] need[ed] to change a major
part of [his] supplier ID.” (Id., Ex. 23; J.
LeDuc Decl. ¶ 43.) Sachs testified that he was referring
to changing the bank where Walmart directed payment, rather
than changing the supplier of record. (Sachs Dep. at
233:20-234:16.) Sachs never intended or attempted to switch
the purchase orders or supplier information from DSC Products
to Three Two Eight with Walmart. (Id. at
230:1-231:5.) Sachs testified that it would have been
“impossible for Walmart to issue a [purchase order] in
the name of Three Two Eight” because the company was
new and did not have a “Dun & Bradstreet
number” or “credibility.”[4] (Id.
at 226:3-23.) Sachs testified that he told Bruce this fact,
but could not think of when he did so. (Id. at
226:3-227:5.) Sachs also could not identify where he learned
that Walmart would not do business with a company like Three
Two Eight. (Id. at 227:23-228:13.)

Sachs
admitted that the only change he attempted to make was a
March 26, 2015 request to route the Walmart payments directly
into the Three Two Eight bank account. (Id. at
227:1-5; Shannon Decl., Ex. 29.) On March 27, 2015, Sachs
emailed Bruce and Jennea stating he “requested a bank
change directly to our new account 328 LLC, ” after
which “all money will go directly to this
account.”[5] (Shannon Decl., Ex. 24; see
also Sachs Dep. at 251:2-23.) However, Walmart rejected
Sachs' request because DSC Products was the supplier of
record, (Sachs Dep. at 227:1-5, 231:12-19); therefore Walmart
continued to deposit the payments into DSC Products'
account, and Sachs transferred some of the funds into Three
Two Eight's joint account himself, (see Shannon
Decl., Exs. 43-44; J. LeDuc Decl. ¶ 72).

According
to the LeDucs, Signature decided to move forward on the
Walmart orders based on Sachs' representations and the
fact that he continued to act as though the partnership would
proceed. (B. LeDuc Decl. ¶¶ 107, 113; J. LeDuc
Decl. ¶ 46.) Production started on the Walmart orders in
early March 2015. (Sachs Dep. at 216:2-6.) On March 17, 2015,
Sachs entered into two contracts with Biscayne Sales and
Marketing, Inc. (“Biscayne”), one for Biscayne to
work for DSC Products with Walmart and Sam's Club, and
one for Biscayne to represent Three Two Eight products in
sales to Walmart. (Shannon Decl., Ex. 27; id., Ex.
53 ¶ 4-6; id., Ex. 54 ¶ 5; B. LeDuc Decl.
¶ 115.)

Bruce
and Sachs also pursued sales with Menards on behalf of Three
Two Eight. In April 2015, Bruce met Doug McCauley, a sales
representative with Menards, to discuss Three Two Eight
selling tumblers to Menards. (B. LeDuc Decl. ¶ 121;
see also Sachs Dep. at 267:6-24.) According to
Jennea, Menards agreed to purchase tumblers from Three Two
Eight in late April 2015. (J. LeDuc Decl. ¶ 52.) On May
4, 2015, McCauley sent an email to Bruce and Sachs telling
them to get the documents together for a purchase order from
Menards, and Sachs responded “I am on it, ”
copying Bruce. (Shannon Decl., Ex. 28.) Jennea and Bruce
stated that in May 2015, Sachs also sent Jennea an agreement
for sales to Menards and Target, which Sachs had already
signed, and Jennea signed and returned; however, no such
agreement is provided in support. (B. LeDuc Decl. ¶ 116;
J. LeDuc Decl. ¶¶ 53-54.)

According
to Bruce, Sachs expressed uncertainty in a May 2015 call
about whether Menards would agree to purchase from Three Two
Eight. (B. LeDuc Decl. ¶ 124.) But then in a conference
call with McCauley, Bruce learned Sachs had been talking to
McCauley independently and that Sachs had already learned
that Menards would issue a purchase order. (Id.)
Sachs completed all of the Menards paperwork under the name
DSC Products, rather than Three Two Eight. (Id.
¶ 125; Shannon Decl., Exs. 30-31.) Sachs stated the
reason for using DSC Products' name was that Three Two
Eight “had no history.” (Sachs Dep. at
264:13-25.) On May 8, 2015, Sachs and Jennea posted two job
openings with Three Two Eight, and Three Two Eight hired
Sachs' bookkeeper, Deborah O'Leary, as Three Two
Eight's bookkeeper. (J. LeDuc Decl. ¶¶ 55-57.)

Signature
and Three Two Eight completed the Walmart orders “as
scheduled.” (J. LeDuc Decl. ¶ 46.) There is not
clear evidence in the record regarding precisely when the
parties completed the Walmart orders, but the record reflects
an expected end date of May 8, 2015. (See Shannon
Decl., Ex. 51.)

D.
Breakdown within Three Two Eight

Bruce
stated that on May 14, 2015, Sachs informed Bruce and Jennea
that Sachs wanted to dissolve the partnership. (B. LeDuc
Decl. ¶ 126.) In a May 18, 2015 email, Sachs proposed
dissolving Three Two Eight; under Sachs' proposal, the
parties would split the Walmart revenue, DSC Products would
take over the Menards order and any future Walmart orders,
and the parties would split the tools. (Shannon Decl., Ex.
33; B. LeDuc Decl. ¶ 128; J. LeDuc Decl. ¶ 69.) In
that same email, Sachs estimated that the partnership still
owed Aroplax $736, 000.00. (Shannon Decl., Ex. 33.)

On May
20, 2015, Jennea emailed Sachs regarding the location of the
Walmart deposits after she learned the payments to Three Two
Eight's account did not come directly from Walmart.
(Id., Ex. 38; B. LeDuc Decl. ¶ 131; J. LeDuc
Decl. ¶¶ 75-77.) According to Jennea, “Sachs
responded by simply stating that [Walmart] sends checks to
DSC [Products].” (J. LeDuc Decl. ¶ 72.) The next
day, Jennea emailed Sachs stating that 4Brava would transfer
money to Three Two Eight in order to pay Aroplax's
outstanding bills, but only if Sachs put the Menards purchase
order in Three Two Eight's name and provided 4Brava with
a schedule of Walmart's expected payments to the Three
Two Eight account. (Shannon Decl., Ex. 36.) Also, on May 27,
2015, Jennea emailed Sachs a notice of special meeting to
dissolve the partnership, but Sachs never responded.
(Id., Ex. 34; B. LeDuc Decl. ¶ 136; J. LeDuc
Decl. ¶ 79.) Around the same time, Sachs sought to fill
the Menards order with Aroplax on his own. (Shannon Decl.,
Ex. 35; B. LeDuc Decl. ¶ 130; J. LeDuc Decl. ¶ 71.)
On May 28, 2015, Aroplax refused, stating that it recognized
Signature as the owner of the molds and that it could not
complete DSC Products' order without written approval
from Signature. (Shannon Decl., Ex. 55.) Sachs responded by
claiming ownership of the molds and threatening that
Signature would “be held responsible for any [lost]
business opportunities.” (Id.)

On June
3, 2015, Jennea texted Sachs asking about the Walmart
deposits and requesting that Sachs “return the money to
Three [Two] Eight's bank account.” (Shannon Decl.,
Ex. 39 at 94.) Sachs responded that he would not return the
money “until the tools are acknowledged as
DSC[‘s].” (Id.; J. LeDuc Decl. ¶
87.) On June 15, 2015, Jennea learned from an affiliate of
Biscayne that Sachs completed a Menards contract under the
name DSC Products, rather than Three Two Eight. (J. LeDuc
Decl. ¶ 89.) On June 24, 2015, Jennea emailed Sachs
stating the molds could be used to fulfill new Three Two
Eight obligations if: third-party vendors, including Aroplax,
were paid in full on behalf of Three Two Eight for all prior
orders; third-party vendors, including Aroplax, were paid in
advance for the future order; and Three Two Eight paid
Signature for the use of the molds. (Shannon Decl., Ex. 41;
Sachs Dep. at 265:12-266:8.) Sachs did not respond to the
email. (Sachs Dep. at 266:4-8.) Sachs eventually commissioned
several of his own molds from Aroplax. (See Id. at
139:1-147:1; B. LeDuc Decl. ¶ 138.)

E.
The Parties' Financials

Sachs
estimated DSC Products received $1.5 million from Walmart,
but acknowledged that Walmart records showing $1.7 or 1.8
million were likely accurate. (Sachs Dep. at 252:23-253:19;
see also Shannon Decl., Ex. 56 at 1.) Three Two
Eight had $672, 782.68 in outstanding debts on May 27, 2015,
(Shannon Decl., Ex. 56 at 13), and Plaintiffs state that
Three Two Eight incurred an additional $96, 847.15 in
interest, costs, and penalties.

Aroplax
stopped or threatened to stop production on Signature's
orders along with Three Two Eight's orders until they
received payment. (J. LeDuc Decl. ¶ 92; B. LeDuc Decl.
¶ 139.) In order to satisfy Three Two Eight's
obligations, 4Brava and Three Two Eight had to pay
third-party vendors and creditors without any of the Walmart
income. (B. LeDuc Decl. ¶ 140; J. LeDuc Decl. ¶
91.) 4Brava contributed $535, 003.12, which Three Two Eight
paid to outside vendors, and Three Two Eight
“borrowed” $206, 552.68 from Signature to pay
third parties. (Shannon Decl., Ex. 56 at 14.) Sachs admitted
that either 4Brava or Signature paid Aroplax $630, 000.00,
following the breakdown of the partnership. (Sachs Dep. at
258:7-18.) Sachs valued the disputed tools at $395, 000.00.
(Id. at 257:6-7.) Sachs conceded he has received
more than the amount of money he invested in the molds from
the Walmart revenue. (Id. at 217:6-11.)

F.
Sachs' Other Litigation

Plaintiffs
note that another manufacturer, Williams Industries, Inc.
(“Williams”), filed a counterclaim against DSC
Products in the Southern District of California. There,
Williams alleged that DSC Products failed to pay for
Williams' manufacturing of tumblers for Walmart.
(See Shannon Decl., Ex. 60.) According to the
Williams' president, DSC Products entered into an
agreement that Williams would be the sole manufacturer for
Walmart's orders of tumblers through DSC Products.
(Id., Ex. 61 ¶ 7.) DSC Products placed orders
with Williams in January 2014, and Williams delivered
tumblers to Walmart and invoiced them to DSC Products between
April and June 2014, (id. ¶¶ 9-10, 12-13),
which was the same time Sachs and Bruce discussed forming a
joint venture, (see B. LeDuc Decl. ¶¶
6-11). Sachs then refused to pay Williams for the products,
leaving, according to Williams, more than $1.4 million in
unpaid invoices. (Shannon Decl., Ex. 61 ¶¶ 13-17.)
Williams contended that Sachs never objected to their
arrangement, and that “[i]t was only when DSC[
Products'] payments for the Walmart orders became due,
and Williams began pursuing DSC [Products] for the over $1.4
million owed to Williams, that Mr. Sachs began alleging
‘fraud' and refusing to pay its outstanding
obligations.” (Id., Ex. 62 ¶ 13.)

G.
Relationship Between Defendants

Sachs
testified his monetary contribution to the molds came from
DSC Products. (Sachs Dep. at 195:5-11.) When asked whether
the money came from DSC Products Holding, Sachs said
“[i]t's possible that [he] moved money from DSC
Products, Inc. to DSC Products Holding for some of it, but
the reality is . . . the money came from DSC [Products], from
Dan Sachs personally and through [his] business.”
(Id. at 195:12-17.) Sachs further specified that the
funds “came out of DSC Products' business account,
” and when asked if that meant the money came
“from Dan Sachs personally or DSC Products, Inc. or DSC
[Products] Holding, LLC, ” he responded, “[i]t
doesn't really matter where it came from. It came from
DSC Products.” (Id. at 195:22-196:6.)

O'Leary
did not set up separate accounting records for DSC Products
Holding, “because DSC [Products] Holding[] really had
no activity.” (Shannon Decl., Ex. 32
(“O'Leary Dep.”) at 13:8-12, 14:5-7; Sachs
Dep. at 186:7-17.) O'Leary also did not keep a separate
ledger for Three Two Eight. (O'Leary Dep. at 13:16-14:4.)
O'Leary acknowledged that she combined the accounts
because “all of the bills and the product [were] under
Three Two Eight. . . . [b]ut all of the invoices and revenue
were under DSC Products, Inc.” (Id. at
53:18-25.) O'Leary agreed that “you can't do
business like that.” (Id. at 54:5-6; see
also Id. at 16:2-4 (“I started realizing that I
can't have the inventory in one company and the invoicing
in another company.”).)

DSC
Products' accounting records also included some of
Sachs' personal expenses, including more than $300,
000.00 for settlement of a lawsuit brought against Sachs
personally. (Id. at 32:21-33:13; Shannon Decl., Ex.
44 at 2.) Finally, Sachs took $513, 644.00 in distributions
from DSC Products' account during 2015. (O'Leary Dep.
at 38:3-14; Shannon Decl., Ex. 44 at 2.)

H.
Sachs' Declaration

In
response to the present motions, Defendants rely almost
solely on a declaration from Sachs dated October 19, 2016 -
the day of Defendants' responses in opposition to the
present motions. (See generally Sachs Decl.
¶¶ 1-30.) Plaintiffs contend that the Court should
disregard Sachs' declaration as a sham declaration
created to fabricate a fact dispute. The Eighth Circuit has
“held that parties to a motion for summary judgment
cannot create sham issues of fact in an effort to defeat
summary judgment.” RSBI Aerospace, Inc. v.
Affiliated FM Ins. Co., 49 F.3d 399, 402 (8th
Cir. 1995). If an affidavit intended to prevent summary
judgment conflicts with prior testimony from the affiant, it
“will preclude summary judgment only if the prior
testimony reflects confusion on the part of the witness and
the affidavits explain why the earlier testimony is in
conflict with the affidavits.” Id. (citing
Camfield Tires, Inc. v. Michelin Tire Corp., 719
F.2d 1361 (8th Cir. 1983)). RSBI
Aerospace involved clear conflicting testimony: the new
affidavits stated the plaintiff was not an employee on a
certain date, when the same witnesses previously affirmed his
employment status. Id.

Here,
Plaintiffs rely on a series of alleged contradictions that
are not as stark. Generally, Sachs' deposition reflects
uncertainty over the ownership of the molds and the details
of the Three Two Eight partnership, and portions of
Sachs' declaration reflect more certainty in a
contradictory manner. Thus, while the Court will not entirely
disregard Sachs' declaration as a “sham, ”
the Court will look to all the evidence presented when
determining if genuine issues of material fact remain. In
particular, there are several statements in the ...

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